Remedies of Negligence and Misinterpretation
This Blog is written by Anjana Vijay from University of Petroleum and Energy Studies, Dehradun. Edited by Karan Dutt.
Any party can be considered as ‘suffering’ when something they may have been enjoying was taken over by another party to issue. This is a violation of the party’s rights and is legally binding with efficient remedies. The legal remedy is one of these remedies. When the victim is rehabilitated to the position as before their rights were violated, he is said to have a legal solution.
DEFINING MISREPRESENTATION AND NEGLIGENCE
a)…Misrepresentation is a false statement of a material fact made by one party affecting the decision of the other party in accordance with the contract. If incorrect representation is obtained, the contract may be declared null and void, depending on the circumstances, the affected party may seek to be harmed. In such a contract dispute, the party that committed the false act becomes the defendant and the victim is the plaintiff. It is very important for the operation of a business under contract law where large transactions occur frequently. Improper disclosure of the value and / or risk associated with the agreement may result in significant financial losses to businesses and individuals while increasing the risk of business transactions. Similarly, the law of fair representation is important in ensuring fairness and minimizing the risk of contracting between individuals and businesses.
These cases can be prosecuted on a criminal or public basis under various circumstances, such as false statements, false claims, postal fraud, or telephone fraud, or it may be the basis for common law claims. In a civil case, it may also be necessary to prove that the victim relied on false statements and actually suffered losses and that a false statement was intentional and part of a deliberate fraud scheme.
For example, a used car dealer, who assures an unsuspecting customer that a 20-year-old car pulled into lots will give him “years of happy driving” will probably not be prosecuted for fraud. The seller may be prosecuted, however, if he tells the customer that the car was delivered only 15,000 miles away when he knew it had traveled 150,000 miles.
The act of fraud (misrepresentation) may be based on concealment of important facts, but only if the defendant has an obligation to disclose the circumstances.
The key elements of fraud based on failure to disclose important facts are:
a) That the defendant had knowledge
b) Of physical reality
c) That the defendant had a duty to disclose
d) And he failed to do so
e) In order to mislead or deceive another party
b)…The word negligence is derived from the Latin word “negligentia”, which means ‘failure to pick up’. In a general sense, the word negligence implies the act of negligence and legally, implying a failure to apply the standard of care that a person as a reasonable man should have used in a particular situation. The notion of negligence in English law emerged as an independent reason to act only in the 18th century.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to do something which a reasonable man would do or doing something which a prudent or reasonable man would not do.
ESSENTIALS OF NEGLIGENCE
To declare any act as negligence under the tort law, there are 6 essentials needed. The action will be negligently divided only if, in all circumstances, it is –
1) Duty of Care
It is one of the most important aspects of negligence in making a person guilty. It means that everyone owes a duty of care, to another person while performing an act. Although this work is present in all actions, but inadvertently, the work is legally valid and cannot be illegal or illegal and cannot be moral, ethical or religious.
2) The Duty must be towards the plaintiff
The duty arises when the law recognizes the relationship between the defendant and the plaintiff and requires the defendant to act in a certain manner against the plaintiff. It is not enough for the defendant to be guilty of caring for the plaintiff but also to establish what a judge’s decision is usually.
3) Breach of Duty to take care
It is not enough for the plaintiff to show that the defendant owed him a duty of care but also to ensure that the defendant violated his duty to the plaintiff. Defendant violates such duty by failing to exercise due care in carrying out the work.
4) Actual cause or cause in fact
In this case, the plaintiff who sued the defendant negligently has a duty to prove that the defendant’s breach of duty was the real cause of damages caused by him.
5) Proximate cause
The immediate cause means “legal cause or the cause the law considers to be the primary cause of injury”. It is an act that produces visible results without the intervention of another person.
6) Consequential harm to the plaintiff
Proving that the respondent has failed to exercise due care is inadequate. It should also be proved that the defendant’s failure to exercise due care has resulted in injury to the plaintiff to whom the defendant owes the duty of care.
Damages- In this case of damages the courts give the plaintiff financial compensation for the damages suffered as a result of the defendant. Injuries are granted only once, the plaintiff cannot go to court for a second step in the same case because his injury has been as serious as previously thought. If more than one right is violated they all need to face the same charge, no two cases should be included in the same facts.
Injunction- It is an order issued by a court to prevent further wrongdoing or omission. With the passage of time, all courts may issue such an order in accordance with the equitable and equitable conditions applicable to a particular case. It is taken for granted, transmission, harassment etc. It can be claimed as right depending on the court’s opinion. The court has the power to issue a compelling order in which the respondent is instructed to take appropriate action to rectify his or her error.
DAMAGES AND ITS TYPES
A damage is the first and foremost remedy for torts. They not only include the plaintiff’s loss but also the plaintiff’s satisfaction with the punishment of the wrongdoer in order to teach him a lesson. Injury is awarded only if there are direct consequences of the perpetrator’s action. The following test determines the amount of damage provided-
• Causation– Whether the damage caused by the wrongdoing is determined by a test that determines whether the defendant’s actions caused the complainant to lose? If the answer to this question is yes the respondent is not guilty and if the answer is yes the respondent is responsible. In the causal relationship between morality and outcome
• Foreseeability– It can be unfair to a person if he is obliged to do all the consequences of his action including unexpected events and, as a result, the result will be permanent. To overcome this problem, to understand the proper test, in which we examine the foresight and the direct consequences of an act that ignores the indirect ones. The action taken must be in the form of a normal person thinking about the consequences.
• Depending on the ‘purpose’ of compensation, that is, whether the plaintiff will be compensated or the defendant should be ‘punished’, there are 4 types of damages:
1. Contemptuous– contemptuous damages are also called ignominious damages. The amount of money released by the court in this case is very low, as is indicative of the court’s rejection, that is, when the plaintiff himself is guilty of a certain offense and can be said to be as the aggrieved person.
2. Nominal– Nominal damages claims are granted when the legal right of the plaintiff is violated, but no actual losses have been made to him. For example, in cases of crime, where the damage has not been done, the legal right is still violated. Here, the intent is not to compensate the plaintiff.
3. Substantial– The greatest damages are to be paid when the plaintiff is compensated for the direct loss he or she has suffered as a result of the abuse.
4. Exemplary/Punitive– These are the highest values. Penalty damages are imposed when the defendant is unaware of the plaintiff’s rights and the substantial damages caused by the defendant. The purpose here is to create an example in public and to make people aware of not repeating the same thing.
GENERAL AND SPECIAL DAMAGES
Where there is a direct link between the defendant’s misconduct and the loss experienced by the plaintiff. For example, person A, due to his negligence, collides with his car with person B, who has a rare bone condition. In this case, the actual damages inflicted by the plaintiff will be compensated, regardless of the plaintiff’s abnormal bone condition. Common damages are obtained by calculating the amount of the actual loss of the claimant. For example, physical pain and loss caused by you, or if the complainant’s standard of living has dropped.
Special injuries are given by proving special losses. There is no straitjacket formula for getting real value. The plaintiff must show the losses he has received. E.g., medical expenses, salary loss (future), repairs or replacement of lost or damaged property / assets.
DAMAGES FOR NERVOUS OR MENTAL SHOCK
Where, as results of negligence or other abusive act, the plaintiff’s nerves are damaged due to shock and trauma, regardless of whether the physical injury was also caused, you are entitled to compensation. The question before the court of law is whether the emotional shock was actually the result of the defendant’s action.
Mental shock, on the other hand, is a mental or emotional disorder of a person. Psychological trauma, too, can be compensated by a compensation suit. Previously, it was thought that psychological trauma could not be compensated, because it could not be measured, but more recently courts have recognized the damage in the event of a psychological trauma as real as physical injury.
The plaintiff’s husband and three children were involved in an accident with the defendant, due to the defendant’s negligence. After seeing her husband and children seriously injured, and hearing the news of her children’s deaths, the complainant panicked and panicked and entered a state of clinical depression. The House of Lord in this case has issued a ruling in favor of the plaintiff, McLoughlin, in which he suffered damage by a mental shock.
PURPOSE OF DAMAGES IN TORTS
The important thing after the repair of the damage is to restore the complainant to his pre-injury condition, or in other words, to restore him to his former position, if the abuse has never occurred.
INJUNCTION AS A REMEDY
Iis an equal remedy found in torts, provided at the discretion of the court. An equal solution is when the court, instead of compensating the victim, asks the other party to fulfill its part of the pledge. Therefore, when a court asks a person not to continue to do something, or to do something good to compensate for the damage, the court imposes a penalty.
An order as a remedy is a court order that prevents a person from continuing to do wrong, or orders a person to do a good deed to repay the consequences of a wrong done by him, that is, to do what he has done wrong. In order to receive the punishment against the party a person must prove the injury or the possibility of damage (damage withheld). The order can be temporary or permanent, and be enforceable or restrictive. Let’s talk about it one at a time. The law relating to punishment is found in the Code of Public Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (hereinafter referred to as the Act), 1963.
A claim for an order can be filed against any person, group or even the State.
In terms of Section 37 of the Act there are two types of orders – temporary and permanent (permanent).
An interim order or termination is issued between the continuation of the case, to maintain the status quo and to avoid further injury until the court appeals the decision. It prevents the defendant from continuing or repeating what he or she was committing. An interim order is issued to prevent the party from receiving damages during court proceedings. They can be issued at any stage while the case is still pending. Any parties may require an order. The power to issue an interim order is based on Regulations 1 and 2 of Order XXXIX (39) of the Code of Public Procedure. Certain terms are kept in mind during an interim order:
1. There must be a first case.
2. Simple balance should be maintained. (That is, which team loses the most, etc.)
3. There must be irreparable damage. (The damage must be such that it cannot be compensated, in cash)
A permanent or permanent order is issued after the court has heard the case on both sides and appealed the decision. Here, as a court decision, it is final and always valid. That is, the defendant cannot continue his wrongdoing, or he must commit a good deed forever.
Cases of permanent admission
• To avoid duplication of judgment.
• If the damages do not adequately supply the complainant.
• If the true identity is not known.